237 A.D. 851 | N.Y. App. Div. | 1932
Judgment and order unanimously affirmed, with costs. The jury were free to find that the plaintiff, Módica, was working on an overtime shift on a locomotive as an engine pumper at five a. m., December 24, 1929, when a hostler backed the locomotive out of the roundhouse on to the turntable; that Módica continued his work thereon, getting the locomotive in running order, until five forty-five a. m., when the regular engineer and fireman came aboard to run the locomotive off the turntable to pick up a train for a regular run; that, unknown to plaintiff, the tracks on the turntable were aligned with the “ pit track;” that such a locomotive was usually run off the turntable on the “ runaround ” track to pick up a train on the main lines; that the engineer knew and Módica did not know that the “ runaround ” track was temporarily blocked and, therefore, that the “ pit track ” was being used; that the engineer gave Módica no warning that the locomotive was to be run off on the “ pit track;” that he gave Módica no warning of the proposed starting of the locomotive before the actual starting thereof; that the engineer observed Módica go through the curtain at the back of the locomotive toward the left side just before the locomotive got under way; that Módica was on the step and had a kerosene torch pointed down, looking for a safe footing, as the locomotive moved forward; that the visibility of the ground was obscured by steam coming from under the turntable and from the cylinders of the locomotive